Constitutional Law

State Power
Sovereignty
Constitutional law

The branch of law that regulates the state itself is called constitutional law.
Contains rules on the organization of the state, on the powers that its organs
possess, and on the relations between these organs (institutional law).
It provides fundamental rights that protect the legal position of the individual
against the state (human rights law, judicial review and administrative law).
Sources of Constitutional Law I.

Constitution
In most countries, the most important constitutional rules are laid down in a central
written document, typically called a constitution (other names: basic law, charter,
regulation of state, fundamental law, etc.).
In some countries, there is no such single, official, written document: in these cases
constitutional morms are found in ordinary laws, custams, case-law.
Entrenchment
Due to their fundamental nature, constitutional documents tend to provide for special
procedures regarding their amendment.
E.g.: special majorities, referenda,
Sources of Constitutional Law II.

Customs
Customs often play a role in the internal proceedings of parliaments, such as the
composition of parliamentary committees or the panel of parliamentary charimen.
Case-law may be constitutionally relevant where courts law down rules with a
constitutional focus.
UK: doctrine of parliamentary sovereingty
US: doctrine of judicial review
HU: permissibility of questions for referenda
(EU: subsidiarity questions, voting in European Parliament)
Sovereignty I.

Sovereignty is the ultimate source of authority in a particular territory, and it is

where the power of the state originates.
Monarchs may claim to derive their power from the divine.
Republics see the ultimate source of authority as emanating from the people
Soverignty II.

Internal soverignty
If an official is able to lawfully impose obligations upon citizens, that official must have a
right or entitlement to rule. Lower ranking officials will cite the authority they received
from their superiors.
Movement for Secession or Autonomy (Scotland, Kosovo, Catalonia, Crimea, Xinjiang,
etc.)
External soverignty
The external aspect of sovereingty relates to the mutual relations between states.
A sovereign state is independent of other states (other states are not entitled to
”meddle” into internal affairs of a sovereign state).
UN: founded on the principle of sovereign equality
EU: cessation or joint exercise of sovereignty
State Power

In order to exercise sovereignty effectively, a state must be powerful.

To keep a grip on the monopoliy on violence (only the state can use coercion
against individuals)
This power is constrained by constitutional law: the power of the state is itself
organized and regulated by the law.
Limitations on State Power I.

Territorial Divison: Spread state power over smaller territorial units and create
regional and local governments that exercise state power for their respective
(territorial) units.
Unitary States: all state powers ultimately reside in one central government authority.
Unitary states may have local or regional authorities, but any such local or regional
decision-making powers are granted by central laws and therefore devolution may be
retracted.
Federations: state powers are divided between organs of the central state (federal
level) and the organs of the subunits (regional level: (member) states, provinces, etc.)
and this division is enshrined in the constitution and not central laws (which protects
regional bodies against possible federal restrictions of their powers).
Confederation: participating entities remain sovereign sttes, but some phases of
decision-making are practiced jointly.
Limitations on State Power II.

Functional Division of State Power: separation of powers among various organs

so that power does not wholly rest in any one body.
Legislative power
Executive power (policy-making, legislative proposals, administration)
Judicial power (elected or appointed, impartial, independent)
Checks and Balances
Separation of powers creates a form of forced cooperation between the branches of
power. Separation is perpetuated by establishing checks and balances, tools which
force cooperation between institutions.
E.g.: Setting up bicameral parliaments (EU), state approval of federal judges appointed
by president (US).
Judicial Review
Forms of government
Limitations on State Power III. – Judicial Review

Courts check the legality of acts passed by legislative and executive bodies in
order to protect minorities.
Culmination of judicial review: constitutional review.
Centralized: Constitutional review is carried out by all courts. In such a case judicial
review is linked to the regular jurisdiction of courts.
Decentralized: In a decentralized system of judicial review, the validity of legislative or
executive acts vis-á-vis the constitution is carried out by a special court (Constitutional
Court, Court of Cassation, Administrative High Court, etc.).
Concrete v Abstract review:
Concrete review: Arises from actual adversarial court proceedings.
Abstract review: Officeholders may claim that a law is unconstitutional even though it is
not being applied in a concrete case (Actio Popularis).
Limitations on State Power IV - Forms of Government

A presidential system is a democratic and republican system of

government where a head of government leads an executive branch that is
separate from the legislative branch.
A parliamentary republic is a republic that operates under a parliamentary
system of government where the executive branch (the government) derives its
legitimacy from and is accountable to the legislature (the parliament). Some
parliamentary republics may have a ceremonial/non-executive president.
A semi-presidential system or dual executive system is a system of
government in which a president exists alongside a prime minister and a
cabinet, with the latter being responsible to the legislature of a state.
Rule of Law

It means that the state rules through law and the state itself is ruled by law. It
may include notions such as: fairness, inclusiveness, independence of
adjudication, transparency, resanableness.
The principle of Legality:
State (and its various organs) may only perform particlular action if it has been given
power to do so by law and to the extent that such performance is allowed by law.
Citizens may do everything unless it is prohibited by law. (And even if they do
somwthing prohibited by law, they may only be sanctioned for it in a manner authorized
by law).
Forms of democratic engagement I.

Representative democracy
Elected officials are entrusted with decision-making power.
For the duration of their term of office, the rulers are not subject to dismissal by the
rules and their decisions may not be overturned by the ruled themselves.
Recall: A popular vote to dismiss an already elected officeholder before the term of
office has expired.
Direct democracy (referenda)
Purest form of democratic legitimation of a decision. It guarantees explicit consent of
the governed.
A referendum deviates from the principle of representative democracy and gives the
governed the power to decide on a matter directly (i.e. by proportional majority vote).
Procedural issues: initiation, formulation of the question, campaign, etc.
Forms of democratic engagement II. - Referenda

Mandatory referendum
E.g.: constitutional amendments
Optional referendum
Binding referendum
The outcome is binding upon the legislative and the executive branches (positive and
negative) (either to decide or the debate).
Consultative referendum
The outcome indicates the preferences of the voting population but the government
may deviate from it nonetheless.
Election systems I.

Franshise: Who is allowed to vote?

Women’s suffrage
Age restrictions
Exclusion of slaves or serfs
Exclusion of persons not fulfilling certain property/taxation requirements
Exclusion of persons not fulfilling certain criteria on qualifications/professions
Election systems II.

Majority Systems: A candidate is elected if he receives a defined majority of

votes (e.g. Legislative body composed of representatives elected in single-
member constitutencies, or districts).
Absolute Majority Systems: A candidate needs more than half the votes.
Plurality Systems: the candidate with the most votes is elected.
Proportional representation: A share of seats in the legislative is proportional to
the share of votes.
Benefit: The composition of the parliament mirrors the composition of popular political
sentiments.
Downside: Fragmentation.
Coalitions may need to be established.
Classifications

Monarchy v Republic (Form of State)

Written v Customary (Constitution)
Federal v Unitary (State) (see also: Union State, Estado Autónomo)
Bicameral v Unicameral (Legislative body)
Presidential (Semipresidential) v Parliamentary (Government)
Centralized v Decentralized (Judicial Review)
Abstract v Concrete (Constitutional Reveiw)j
Direct v Indirect (Forms of democratic engagement)
Bindig v Optional (Referendum)